Hearings for Court of Appeal Nominees

• Author: Patricia Hughes
• Date: August 13, 2019

Recently, the chief justice of Canada, The Honourable Robert Wagner, suggested that appointments to the appellate courts might beneficially echo the process for appointment to the Supreme Court of Canada, with the introduction of legislative hearings into the nominee. As reported in The Globe and Mail, the chief justice argued that public nomination hearings would add to the transparency that he is seeking to bring to the judicial process and would increase trust in the judiciary; he explained, “the best way to avoid bias and prejudice is to inform the people.” Based on the process for SCC nominees, is this idea worth the candle?

What have we learned about the value of the interviews an all-party parliamentary panel (comprised of the House of Commons Standing Committees on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs, along with representatives of parties with seats in the House) holds with the prime minister’s Supreme Court of Canada nominees since they were initiated in 2006? (Not all nominees since then have been subject to the questioning, but the first few and the last three have been.)

It is true that the fear expressed by some (I include myself) when these question and answer sessions were instituted, that they would become partisan and place nominees in untenable positions, such as being pressured to announce how they would rule on a particular matter or to explain specific decisions they might have made if they had previously held a judicial appointment, has not occurred. The partisanship and ugliness that too often accompany Senate Judiciary Committee hearings in the United States has, so far, not arisen, perhaps because our politics tends not to be so ugly or because members of the committee are not allowed to ask certain questions, such as about matters that might come before the court.

The power to appoint SCC resides in the Governor-General-in-Council under section 96 of the Constitution Act, 1867; in practice, however, it is the prime minister who makes the selection from a list presented by a selection committee, which has consulted widely, primarily in the legal community, and on the advice of the attorney general/minister of justice. (For an example of the consultation by the selection committee, see the Justice Committee Report relating to the process that culminated in the appointment of Justice Malcolm Rowe.) When the PM has announced his (potentially, anyway, her) choice, the parliamentary committee holds the question and answer session. The PM then recommends the nominee to the federal cabinet. (A similar process occurs for appellate judges who are also appointed by the Governor General; other than for chief justices and associate chief justices, the minister of justice makes the recommendation to the federal cabinet.)

While there may be rumours about individuals being considered...